The Civil Procedure Amendment Bill 2012 amends the
Civil Procedure Act 2010 (Act) to create
greater flexibility in the overarching obligations requirements for
insurers. The changes aim to promote efficient, timely and
cost-effective resolution of the real issues in dispute in a civil
proceeding.

Under the original Act, a party was required to personally
certify that the party has read and understood the overarching
obligations and the paramount duty. Despite an insurer bringing
proceedings in the insured's name pursuant to its rights of
subrogation, the courts would not accept overarching obligations
certifications signed by the insurer. This created difficulty in
circumstances when the insured failed to return the overarching
obligations certification in a timely manner or refused to sign the
overarching obligations certification.

The amendment applies to section 41 of the Act, with the
addition of subsection (4), which allows a person other than the
named party to make the overarching obligations certification where
that person has meaningful control over the conduct of the
proceeding by virtue of a statute or contract. Either the named
party or the person in control may make the certification. For
example, the insurer may make the certification instead of the
named party.

In instances where there is an uninsured component in the claim,
we would recommend ensuring the insured makes the certification to
ensure cooperation and compliance by them with the overarching
obligations, including but not limited to providing documents,
taking steps to resolve the dispute, minimising delay and acting
honestly.

The changes to the certification requirements will commence on
31 March 2013.